UNITED STATES v. AGURS

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Argument of Frey

Chief Justice Warren E. Burger: We will hear arguments next in 75-491, United States against Agurs.

Mr. Frey, you may proceed whenever you are ready.

Mr. Frey: Mr. Chief Justice and may it please the Court.

This case is here on the Government’s petition to writ of certiorari to the Court of Appeals for the District of Columbia Circuit, which had ordered a new trial.

On the afternoon of September of 24, 1971, respondent and the decedent James Sewell checked into a Northwest Washington Tourist Home, registering as man and wife.

About 15 minutes later, three employees of the Tourist Home heard screams emanating from the room occupied by Sewell and respondent.

Upon forcing open the door of the room, they discovered its two occupants on the bed, Sewell lying on top of respondent and both holding onto a knife.

There was testimony showing that respondent’s hand was on the handle of the knife and Sewell’s on the blade.

After two were separated, police and an ambulance were called.

Sewell was taken to a nearby hospital where he died.

Respondent in the meanwhile had slipped out of the Tourist Home in the confusion and disappeared.

The evidence showed that Sewell had had some $345.00 in cash on his purse about two hours before the fatal incident, which money was not found on his person or in the room after the stabbing.

An autopsy of Sewell revealed that he had been stabbed numerous times in the chest, abdomen and back with a knife, including a stab wound of three-and-half to four inches in depth into the heart and another that entered just above the navel and penetrated about five-and-half inches into the liver.

There were also cuts on the palms of Sewell’s hands of a kind, according to the medical examiner, that might be received one trying to defend himself from a knife attack.

Respondent turned herself into the police the next day at which time a physical examination of her disclosed no cuts, wounds or bruises on her person.

The prosecution’s theory at trial was that Sewell had gone to the bathroom, down the hall, and upon return to the room had found respondent riffling through his clothing.

In the ensuing dispute, respondent took the knife and repeatedly stabbed Sewell causing his death.

The defense contended that respondent, who did not testify as to what had transpired, may have acted in self defense.

Counsel based his argument to this effect on the fact that it was respondent’s screams that the Motel employees had heard and the fact that when they broke into their room, Sewell was lying on top of the respondent.

The Jury found respondent guilty of second degree murder.

In the course of preparing for trial, respondent’s trial counsel had interviewed a witness who advised them that he believed that Sewell had been arrested a number of times and possibly convicted for assault with a knife.

After consulting with another attorney who was a former teacher of Criminal Law and an experienced practitioner, counsel concluded that any criminal record Sewell may have had would have been inadmissible in evidence in support of respondent’s claim of self defense because it was not known to respondent.

He, therefore, made no further effort to discover or use information on this subject. As some three --

Chief Justice Warren E. Burger: (Inaudible) found that she had no knowledge of --

Mr. Frey: Yes, he so stated in his affidavit in this case.

Some three months after respondent was convicted, the Court of Appeals decided a case called United States against Burkes in which it stated in dictum that evidence of prior specific acts of violence by a deceased would be admissible in a homicide case to support a claim of self defense, even if not known to the defendant.

When counsel learned of this decision, he checked the prosecutor’s case file and found that it did contain Sewell’s criminal record which consisted of two misdemeanor convictions in 1963; one for carrying a knife and one for simple assault with a knife, this was eight years before the homicide, and another misdemeanor conviction in 1971 for carrying a knife.

He there upon brought this motion for a new trial on a basis of newly discovered evidence which has led us here today.

The District Court denied respondent’s motion for a new trial on the basis of alleged prosecutorial suppression of the evidence of Sewell’s criminal record and subsequently also denied a second motion for new trial, based upon the allege ineffectiveness of respondent’s trial counsel in pursuing this matter.

The Court of Appeals reversed.

While it expressly refused to find that the prosecutor had engaged in deliberate suppression, it concluded that the element of prosecutorial misconduct in the absence of a defense request for the non-disclosed evidence in this case, were much less significant in assessing a new trial motion than the materiality of the undisclosed evidence.

Justice William H. Rehnquist: Mr. Frey, was the case before the Court of Appeals on direct appeal from the conviction?

Mr. Frey: Well, yes it was before the Court of Appeals on direct appeal.

When this matter came out it was remanded to the District Court for a hearing.

The motion for a new trial was denied.

It was then -- the trial counsel then moved to have himself remove as counsel, a new counsel was appointed and was re-amended I believe to the District Court for a second hearing on the ineffective assistance of counsel point, but I believe it was on direct appeal rather than collateral attack.

I do not think it would really make any difference though to the disposition of the case.

Justice William H. Rehnquist: Well, but nothing turns on the nature of the newly discovered evidence for purposes of amending or denying a motion for a mistrial or for a new trial?

Mr. Frey: I am not sure, I understand your question.

Justice William H. Rehnquist: I mean, is the case before the Court of Appeals in the posture of an attack on the judgment of conviction or a claim that the trial judge erred in denying the motion for a new trial on a basis of newly discovered evidence?

Mr. Frey: The later, yes.

Now, the Court of Appeals held that a new trial is required whenever, irrespective of the blame worthiness of the prosecutor’s conduct, the undisclosed evidence might have led the jury to entertain a reasonable doubt about a defendant’s guilt.

It concluded that this evidence came within that category and thus a new trial was required.

In so ruling, the Court was essentially following the precedent established by the District of Columbia Circuit nearly ten years earlier in the decisions in Levine against Katzenbach and Levine against Clark, from which the Chief Justice, then a Circuit Judge vigorously dissented.

In the view of the majority of those cases, the absence of a defense request and the lack of defense diligence in discovering evidence, subsequently claim to justify a new trial are factors to be given little or no weight in deciding the new trial motion.

The mere fact that the prosecutor possessed evidence that might have been helpful to the defense was alone sufficient to require a new trial.

The dissent effectively expressed the contrary view, which is our view, that those factors are critical, that is prosecutorial breach of duty and defense diligence and that their abandonment is difficult to justify either in logic or in terms of the impact of such a ruling upon the fabric of our adversarial system.

At the heart of this and like cases in our view, there is the need to choose between these two analytical models, the one propounded by Chief Judge Basil on Eleventh, the clear tendency of which is to impel the Government toward an open files policy in criminal cases and the one upon which the Chief Justice’s dissent was grounded, which seeks to define a duty of disclosure within the context of the adversarial system.

Now, before turning to further discussion of these analytical models, let me stress the salient facts of this case, which in our view conclusively demonstrate the error of the Court of Appeal’s decision.

First, the defense knew that Sewell probably had a criminal record, but it chose not to pin down the details of it.

This was not evidence within the prosecutor’s exclusive possession.

It was equally available to the defense.

They simply had to subpoena the Police Department to get it.

Justice William H. Rehnquist: Well, can you -- forget it.

Justice Harry A. Blackmun: (Inaudible) ineffective assistance of counsel, but I had notice that in his brief, the respondent who presents that question, I gather in defense, even that if you are right on the first point, in defense of the judgment below, are you going to address the ineffectiveness?

Mr. Frey: Well, I will if the Court wishes at the conclusion of my argument.

We have --

Justice Harry A. Blackmun: Am I right that the respondent is lying and then the (Voice Overlap) to support an affirmance of the judgment (Voice Overlap)

Mr. Frey: She relies on it.

She relies on it in our replied brief, we have addressed it.

We think that it is a proper issue before the Court that it is an alternative ground for affirmance and we urge this Court to decide it and we have discussed why even--

Unknown Speaker: (Inaudible) decided below?

Mr. Frey: It was not decided below.

Unknown Speaker: (Inaudible)

Mr. Frey: It was presented below.

Unknown Speaker: Who present it?

Mr. Frey: It was presented, but it was not decided.

And the reason that we are urging this Court to decide it is two-fold.

One is that this homicide occurred in 1971 and this case has been going a very long time without resolution and secondly, it is really the other side of the coin of prosecutorial misconduct or nondisclosure and I think that the two issues are sufficiently interrelated that it is appropriate for this Court to consider both aspects in reaching its decision.

Justice William H. Rehnquist: Mr. Frey, can defense counsel simply obtain by discovery of the wrap sheet on the decedent in this case?

Mr. Frey: I am advised that certainly at the time that this case was tried, I mean, there is a privacy act in Illinios law and I do not know that it would apply to a deceased, but at the time this case was tried and I believe all that was necessary was a subpoena to the Police Department.

In this case, although it was necessary, surely it was a request to the prosecutors any information.

Justice William H. Rehnquist: Well, but you are saying in effect, he could have gotten it by means other than going to the prosecutor --

Mr. Frey: That is right.

Justice William H. Rehnquist: -- it was not in the exclusive province of the prosecutor --

Mr. Frey: That is correct.

Justice William H. Rehnquist: -- it is different than saying, he could have gone to the prosecutor?

Mr. Frey: Well, I am making both points, although I think they both have telling effect in the same direction.

Chief Justice Warren E. Burger: (Inaudible) the prosecutor, she could have gone to the prosecutor before trial, that is under Brady theory?

Mr. Frey: Well, but I am also -- I am making, although I realize there is now finding on this issue, I am simply making a pragmatic assessment.

I mean, had they gone to the prosecutor and asked this, there is nothing in this record to suggest that it would not have been given.

Prosecutors frequently, voluntarily disclose information that is requested of him.

Chief Justice Warren E. Burger: Well, the Police Department afterwards -- they can get it from the Police Department before trial?

Mr. Frey: Well, they got it from the prosecutor afterwards.

They could have gotten from either the prosecutor or the Police Department I think before trial.

Now, the second point is that both the defense and the prosecution believe that the record was not admissible in evidence.

Thus, even if the prosecutor had disclosed the record to the defense, it would not have been used at the trial.

Now, thirdly, this view of inadmissibility was quite reasonable at the time.

It was only as the result of a dictum in a case decided three months later that it appeared likely that such evidence might have been held admissible.

And indeed today, I think six judges of the Circuit Court of Appeals have indicated in their opinions, on our petition for re-hearing that they would probably view this evidence as inadmissible and the District of Columbia Court of Appeals, the local Court has stated that such evidence would be inadmissible if not known to the defense.

Chief Justice Warren E. Burger: While they are having that view, they did not resolve the matter in the Circuit?

Mr. Frey: Well, we asked them to and -- I cannot answer.

They were four votes for re-hearing en banc.

But, we needed five (Inaudible) to secure. Now, finally, even if the defense had known of the evidence and of its admissibility, there were good tactical reasons not to use it and these are addressed in a last section of our brief and respondent has not really answered them.

The evidence would have tended to show Sewell’s familiarity with a knife, and therefore, enhance the implausibility that respondent could have -- had he attacked her first succeeded in inflicting such grievous wounds upon him and escaping totally unscathed herself.

Now, if a new trial is going to be required on the basis of evidence such as this, we think there is a very little left to any principal of finality of judgments in criminal cases.

Turning to the analytical framework; in our view cases like this can and should be approached analytically in much the same manner as any motion for a new trial based on newly discovered evidence.

The first ingredient in every such case is the question whether the evidence is in fact properly characterized as newly discovered.

It is uniformly been held that evidence known to the defendant or discoverable in the exercise of due diligence, cannot supply the basis for a new trial.

There is no reason to depart from that simply because of Brady claim was involved.

Indeed, it is highly inappropriate to do so because the heart of the Brady claim relates to evidence in the exclusive possession of the Government.

Now, let us assume, however, that at the evidence of Sewell’s criminal record can properly somehow be treated as newly discovered or that the requirement of new discovery can be dispensed with, Court must next consider in any new trial motion on the basis of newly discovered evidence, what the proper standard is for assessing the sufficiency of the particular piece of evidence to warrant a new trial.

Now, ordinarily when the evidence is simply uncovered and it was unknown to anyone prior to the trial, the standard is whether the evidence would probably result in a different verdict on re-trial, this is an ancient and nearly uniformly followed standard.

That standard fully accounts for the balance that we have struck in our system between the undeniably important interest that convictions of innocent persons not to be permitted to stand, and on the other hand, the interest in the finality of judgment survive that after fair trials.

No one seriously suggests that respondent can meet that standard in this case.

If she is to get a new trial therefore, it is not because of concern that she maybe innocent, but because of other policies.

Now, to sharpen the focus, the question is what bearing does the fact that the prosecutor possessed the particular piece of evidence in question here, have on the standard to be applied, in determining whether the evidence supports a new trial?

The Court of Appeals plainly believed that that fact alone sufficed to justify a new trial in the most generous possible standard, that is whether the evidence might have affect of the jury’s verdict.

We say that that fact standing alone has no effect, that further questions must be asked, that is did the prosecutor’s failure to disclose constitute a breach of duty on his part?

Only if that question can be answered affirmatively, is there any justification to depart from the normal standards for awarding new trials on the basis of newly discovered evidence, because only then can it be said that the trial that did take place was in effect with unfairness and only then can it be thought that the award of a new trial might serve a useful function in shaping future prosecutorial behavior.

Now, this analysis that I am propounding, some of the commentators have suggested that it is inconsistent with certain language in this Court’s decision in Brady against Maryland.

Specifically what the Court said in summarizing its holding was that the suppression by the prosecution of evidence favorable to an accused upon request violates due process, when the evidence is materialized to guilt or punishment and here are the important words, “irrespective of the good faith or bad faith of the prosecution.”

Now, in Levine against Clark, the majority took the view that that language meant that the more generous standard of awarding a new trial as not to turn on prosecutorial misconduct, but simply to turn on consideration of whether the evidence might have helped the defendant, had not been introduced at the original trial and we think that is incorrect.

First of all, the language applies only when there is a defense request.

The defense request in some sense maybe viewed as taking the place off or imposing an additional duty on the prosecutor, and therefore, relieving the Court of the obligation to make a determination about his subjective state of mind.

In any event, we think what that language means is that you judge the prosecutor’s conduct not by having to find subjective bad faith, not by having to find willful misconduct, but by looking at the known facts and determining whether objectively viewed, those facts show a departure from his duties.

This is the same standard that is used in conventional negligence law.

It is still requires that he had a duty to disclose.

If he had no duty to disclose that he breached, it is simply pointless to award new trials by virtue of what turns out then to be a wholly fortuitous fact that he had the piece of paper in his file that contained this evidence.

Now, if we agree thus far that the prosecutor must have breached the duty of disclosure, we next suggest that the presence or absence of a meaningfully specific defense request is a central importance in defining the prosecutor’s duty of disclosure.

Now, let us be clear about what I am contending here.

If the prosecutor has willfully suppressed evidence, acted with mens rea, a request would be unnecessary.

Moreover as Judge Friendly has indicated in the Keogh case and has come to be generally accepted in the Second Circuit and a number of other Courts, if the evidences of such obvious exculpatory value that it could not have escaped the prosecutor’s attention even without a request, then, there would be justification in those circumstances for awarding a new trial, even in the absence of a request.

The case is cited by the Court of Appeals on page 9-A of the petition, in Footnote 10, are such cases.

In the Hibler case, the prosecutor misrepresented the testimony that would be given in proposing a stipulation, although he knew that the person would not testify as he proposed in the stipulation.

In Baldi, the prosecutor failed to disclose to the defendant ballistics evidence indicating, a finger print evidence indicating strongly that the defendant was not guilty.

In Meers against Wilkins which Mr. Justice Marshall wrote when he was on the Second Circuit, two eye witnesses known to the prosecution and not known to the defense had failed to identify the defendant and the prosecutor had not disclosed that.

In Pool, it was a rape case and there was evidence, medical evidence that in fact the complainant had not had sexual intercourse.

Now, when we are talking about that kind of evidence, we do not doubt that the prosecutor has a duty of disclosure to the defense even in the absence of a request.

Although, if the defense already knew about the evidence, we do doubt that a new trial would be required.

But most situations do not involve that.

As Judge Friendly said in Keogh, that is the rare case when the prosecutor acts with that kind of gross negligence or callous disregard for fair play.

The normal case is a case like this in which the prosecutor who naturally is an adversary looking at the file from a certain prospective who is not familiar -- he does not know what the defense knows, he does not know what the defense is going to be.

He does not know what information is likely to be important to a defendant and what information is likely to be of no interest at all.

In that situation, it is awfully easy for him to make a mistake, for him to fail to appreciate the exculpatory utility of a piece of information in his file, unless he has had the benefit of a focused defense request which calls his attention to that kind of information, which therefore elevates his duty to examine that kind of information with care to look at it from the prospective of a defendant and to see whether so viewed, he can perceive its utility to the defense.

Justice William H. Rehnquist: When you say a focused defense request, you mean something more than than just a request for “Brady material?”

Mr. Frey: Absolutely.

Our firm position on this is that a request for all Brady material, all exculpatory material is the equivalent of no request.

All that does is -- say the prosecutor please obey your constitutional or other obligations. It does not -- it does not perform the function that a request is to perform which is to call the prosecutor’s attention to certain kinds of evidence.

Justice William H. Rehnquist: But the defendant probably does not know any more or probably knows less about what is in prosecutor’s file and the prosecutor does and they both know what kinds of evidence would be relevant, do not they?

Mr. Frey: Well, that is not necessarily true.

First of all, the question of whether the defendant knows whether it is in the file or not is not relevant.

He can ask for if it is not in the file, a prosecutor would not produce it.

But I think in most cases, the defendant can anticipate.

I know it has been suggested how can the defendant know what is in the prosecution’s file.

In our view, all you have to do is to think to think about civil litigation and think about a lawyer of minimum of competence preparing a series of written interrogatories for a witness and you will see that it is quite easy.

I mean this case is a perfect example.

If the defense wanted Sewell’s criminal record in order to show that he was the aggressor, it was a very simple thing for them to ask for it.

Chief Justice Warren E. Burger: (Inaudible) first come in the possession of that information?

Mr. Frey: Well it was -- the trial is in July, the Burks decision was in October.

Trial counsel read about the Burks decision in November of 1971 and it was in a few days thereafter, went down to the US Attorney’s office and prosecutor showed him the file.

Chief Justice Warren E. Burger: Someone about the admissibility of that --

Mr. Frey: Before the -- about two or three months before the trial.

He looked into it to the extent of determining, I think probably correctly from this consultation that it would not be admissible.

As it turned out, this particular panel had said on a direct appeal over refusal to admit the evidence might have reversed the conviction, but I do not think that even represents majority sentiment in the District of Columbia Circuit.

In any event, I think that is an important point, not so much in this case, where there was no request, but in terms of understanding the general analysis that to ask defendant simply to request to all Brady material is a formality.

I mean, if that is all it amounts to, then I think we might as well forget about having a request for acquiring because it would simply be unfair to those -- it is inconceivable that there would be any reason for a defendant not to ask in that fashion.

What the defendant has to do is call to the attention of the prosecutor that he is interested in certain kinds of information.

Justice Byron R. White: Now, the piece of paper or piece of evidence that the prosecutor would not be obligated to turn over on his own, but yet, he is obligated to turn over on a Brady request for a specific -- for that specific document?

Mr. Frey: Well, there I think if you --

Justice Byron R. White: He has not -- I suppose you are not -- I do not suppose a prosecutor is required to turn over every piece of paper that the defendant asks for.

Mr. Frey: Well, that is clear.

The requirement to turn over --

Justice Byron R. White: Which ones are?

Mr. Frey: He is required -- well, the constitutional standard which this Court has expressed is in terms of evidence that is requested by the defense that it is favorable and that is material.

Justice Byron R. White: Could you know about that piece of paper and not to have to turn over on your own, just the way you described it?

Mr. Frey: Well, this case is perfect example.

He knew about -- he had in file a criminal record of the decedent which is something that as a matter of routine trial preparation he requires --

Justice Byron R. White: And it was favorable.

You say it was favorable in the sense that --

Mr. Frey: The Court of appeals held that it was favorable because it would have --

Justice Byron R. White: We were judging the case -- you are not challenging that finding?

Mr. Frey: Well, we do challenge that finding in part three of our brief.

What we are not challenging is that it was admissible.

The Court of Appeals --

Chief Justice Warren E. Burger: (Inaudible) it does not establish anything more than everyone already knew, namely that this man carried a knife?

Mr. Frey: That is right, which was already in evidence that he was carrying a knife on the particular occasion, but let me point to another example.

In Levine case, the evidence that the prosecutor had was a statement from a witness equally available to the defense that he did not remember something, which the prosecutor -- the prosecutor was not planning to use this witness to prove the point.

Yet, the Court said and as it often does that well had the defendant had this which he could have gotten by simply going and asking the witness the same questions, had the defendant have this why he might have changed his defense strategy, he might have been able to utilize this non-recollection of a particular event to --

Chief Justice Warren E. Burger: (Inaudible) you would not have to turn over on your own, but you would have to turn over on a Brady request?

Mr. Frey: I think if there were Brady request in Levine, for instance, for any evidence in the prosecution’s position that a witness had not recollected certain transactions and it is not as difficult.

I think if you think about it is not as difficult as you might suppose for a Lawyer to come up with a focused request.

He knows what the issues are.

He has talked to his client.

His client has told him what actually happen, that is what his client knows.

Often his client has considerable involvement in the events, but not under the defense culpable involvement.

I do not think it is insurmountable.

Now, obviously if the nature of the information is such that the prosecutor can appreciate that the defense could not possibly realize that it existed, that would go into the mix in determining whether the prosecutor had comported with his duties.

It is not important so much how the duties are defined as that we clearly recognize at the outset the principle that there must be a breach of duty.

However, the Court ultimately chooses to define that duty, whether it be more stringently than it has in Moore and Brady.

There must be a breach of duty before a new a trial can be awarded on this ground.

I like to reserve the balance of my time.

Chief Justice Warren E. Burger: Mr. Bradley?

Argument of Edwin J. Bradley

Mr. Edwin J. Bradley: Mr. Chief Justice and may it please the Court.

Now, I first say that we here on direct appeal -- we were on the Court of Appeals on direct appeal.

Notice of appeal was timely filed and the last part of the Court of Appeals' opinion constitutes a grant of a new trial, rendering unnecessary any consideration of the motions concerning the trial court’s arguments, concerning the trial court's denial of a motion for new trial and the alleged ineffectiveness of her trial counsel, so we were --

Justice William H. Rehnquist: The grant of new trial you should get after judgment of conviction is reversed, is it not?

The Court of Appeals said on direct appeal, this case is where the judgment is reversed and sent back for another ground?

Mr. Edwin J. Bradley: Yes.

May it please the Court, perhaps at the outset because there seems to be such a striking difference, I think it will emerge that there is such as striking difference between the perceptions of this case that I have and that my brother has, but I should state our general view of the case and the general principles and propositions that we urge upon the Court, but I will fully intent to very particularly get into the record.

Justice John Paul Stevens: Mr. Bradley, before you get too deeply into this case, I am still little troubled by the procedure because I did not think your client -- I know do not know you were then the counsel or not, discovered this evidence until almost four months after the trial was over.

So how could it have been a direct appeal, reversed on this ground?

Mr. Edwin J. Bradley: As I understand it, counsel at that time had saved the appeal of rights and when substitute counsel did take over the appeal and made the Brady point a subject of the appeal, by that time, there was the delay -- the time begin the run from the judgment of conviction that that was sometime after the trial and by that time I am frankly, I am surprised that there is a question about this because I simply assumed that we are all agreed that we are on the Court of Appeals on direct appeal on the Brady point and on the in effectiveness point with regard to the motion after trial than based on in effectiveness of counsel, but the Brady point as I understand it was definitely before the Court of Appeals on direct appeal.

Chief Justice Warren E. Burger: Counsel -- in light of the claim of effective assistance of counsel?

Mr. Edwin J. Bradley: No, we were not trial counsel.

Now, generally speaking then, respondent’s submission to the Court today is that the knowing possession, the conscious possession of evidence which on the basis of perfectly clear precedent was admissible at that trial on the basis of the knowing possession of clearly admissible evidence, readily recognizable as important to the issues as relevant to the issues, readily recognizable as having significant prohibitive value and as destructive to the prosecutor’s case, prohibitive value for the defense.

That in such a case, the defendant is presumptively entitled to that evidence, and that any nondisclosure of that evidence in the case of knowing possession as I say, I think the record will bear out --

Justice Thurgood Marshall: How come that breached up to this point?

Mr. Edwin J. Bradley: And then I will proceed -- yes?

Justice Thurgood Marshall: And you said it should not be kept from it?

Mr. Edwin J. Bradley: Yes, and I will then --

Justice Thurgood Marshall: (Voice Overlap), was it?

Mr. Edwin J. Bradley: I am sorry?

Justice Thurgood Marshall: It was not kept from it?

Mr. Edwin J. Bradley: Yes there -- the --

Justice Thurgood Marshall: He never asked for it.

It was not denied to him?

Mr. Edwin J. Bradley: It (Voice Overlap) kept --

Justice Thurgood Marshall: (Voice Overlap)

Mr. Edwin J. Bradley: Yes, in this way.

The defendant never -- the defendant through counsel never asked the prosecutor specifically for this evidence, but the prosecutor was aware of the fact, through pre-trial investigation, was aware of the fact and had conscious possession of this evidence, made the deliberate choice, knowing of its relevance, knowing of the high degree of prohibitive value, made the deliberate choice to withhold it.

Justice Thurgood Marshall: Where did the prosecutor get this from, this information?

Mr. Edwin J. Bradley: I do not know that as a matter of fact.

Justice Thurgood Marshall: Well --

Mr. Edwin J. Bradley: Yes.

Justice Thurgood Marshall: And the same -- the defense counsel had got it the same way?

Mr. Edwin J. Bradley: Yes, yes Your Honor.

Justice Thurgood Marshall: So how was the prosecutor preventing him from getting it?

Mr. Edwin J. Bradley: The prosecutor did not prevent, but the prosecutor withheld and that the withholding --

Justice Thurgood Marshall: When he asked for it, did he give it to him?

Mr. Edwin J. Bradley: No.

Justice Thurgood Marshall: But where the defense counsel get it?

Mr. Edwin J. Bradley: Found in the prosecutor’s file, by looking in that file himself some four months --

Justice Thurgood Marshall: The prosecutor would have let him have it.

Now, what is that now that they say that if you did asked for it early, you would have gotten it?

Mr. Edwin J. Bradley: No or there is nothing in the record indicate that this prosecutor behaving the way he had with respect to this evidence would have disclosed it.

I see nothing in this record to justify, conceding to this prosecutor the sufficient degree of good faith, that he would have disclosed this.

Unknown Speaker: (Inaudible)

Mr. Edwin J. Bradley: I do not believe I said that the prosecutor concealed.

The prosecutor, if it pleases Your Honor, did not disclose this evidence to the defense.

He made the conscious, deliberate choice not to disclose this evidence which, again, I submit the record will show and the nature of the case will show he had to recognize was palpably relevant, would have been very helpful to the defense and was hurtful to his case.

Now, the question really becomes whether the Government in possession of exculpatory evidence should be excused because it is otherwise available or because there no request.

Justice William H. Rehnquist: Mr. Bradley?

Mr. Edwin J. Bradley: Yes.

Justice William H. Rehnquist: You use a couple unto your expression conscious possession which suggests almost the presence of a physical document in the file.

Is your view of the law that that confine?

I mean, what if the prosecutor may have heard from a witness something that is favorable to the defendant.

He never made any notes of it, it is not in his file.

Does he consciously possess in your use of that word that bit of evidence?

Mr. Edwin J. Bradley: If it were highly material, in any event it is not this case, but if it were highly material, it would provide the defense with a lead to probative evidence, then yes I think the Government then is in possession of exculpatory material and would be obliged to disclose it.

Justice William H. Rehnquist: So it is not just open files, but it is full divulgence of all conversations that the Assistant US Attorney may have had with witnesses?

Mr. Edwin J. Bradley: I do not know how far Your Honors, question would take this.

I think in this case we have; what in fact we have and what the Court, I am asking Court to rule on is something physical in the file of the prosecutor.

That he was consciously possessed of and the Court needs only to speak to the specific point.

Justice Thurgood Marshall: Mr. Bradley, suppose it was a newspaper clipping that this man had been convicted of having a knife, that is all the prosecutor had, would he be obliged to give that to the defense counsel?

Mr. Edwin J. Bradley: Yes, Your Honor and my question would be why not?

What is the burden on the Government?

How is the Government --

Justice Thurgood Marshall: My question is, is there anyway further you go on that?

Mr. Edwin J. Bradley: Well, our submission is that the Government is knowingly possessed of material which is helpful to the defense, there is an obligation to disclose that information.

This is not in adversarial point at this stage of the Government through its investigation.

If the Government through its preparation for trial comes across something helpful to the defense, there is nothing to justify it.

It does not hurt the Government, it is administratively simple.

There is nothing to justify the Government withholding that from the citizen.

The citizen is not an enemy.

The citizen is not an adversary with respect to the investigation of that crime.

There maybe problems with disclosing material adverse, that is the Governments’ case against the defendant which we deal with in a separate system of rules, but --

Chief Justice Warren E. Burger: (Inaudible) with the aid of the more -- apparently more experienced to defense lawyer, coming in the conclusion that the general rule was that unless the defendant can show knowledge of the reputation, it was not admissible.

That is the general rule in this country, is it not, overwhelmingly if not universally?

Mr. Edwin J. Bradley: Well, the fact of the matter is in this case, Your Honor, in this situation, there was extent a decision in the District of Columbia which flatly held at this --

Unknown Speaker: (Inaudible)

Mr. Edwin J. Bradley: Before you know it, a decision, the Government mentioned the later case, but the earlier case -- the earlier case is Evans, the later case Burks.

Burks simply applies the 1960 case which states flatly, any evidence tending to show the kind of person decedent might have been is admissible.

All the arguments made against admissibility, I am sure, were made to the Court in that case.

The Court flatly rejected the position that either evidence of specific acts of violence or reputation, opinion evidence was admissible unless the defendant knew about it.

It expressly rejected that position.

It is a square holding.

It could not be plainer.

It rehearses all of the arguments.

The objective occurrence in issue and not the subjective belief is the important thing.

Yes?

Justice Lewis F. Powell: Is it not true that four Judges of Court of Appeals of the District of Columbia disagree with what you just said about the law in that second?

Mr. Edwin J. Bradley: I do not really know because they have not had presented --

Justice Lewis F. Powell: Opinion by the four Judges who would have granted en banc consideration of the case?

Mr. Edwin J. Bradley: But not after having had the benefit of argument by both sides and gaining a full appreciation for the problem.

Justice Lewis F. Powell: You are saying they may have had different view as they had the case argued?

Mr. Edwin J. Bradley: If they have the case argued and it was not argued too, but in any case, in any event Your Honor, even if they are now believe that, at the time this case was tried this evidence was admissible and if --

Justice Lewis F. Powell: How can you say in light of the doubt that certainly exists as evidenced by the opinion of four of the judges that the prosecutor deliberately withheld information which he and counsel for the defendant both thought as the four Judges did that the evidence was inadmissible?

Mr. Edwin J. Bradley: Well, of course our submission is as I have said that the negligence of the defense does not excuse the failure of the Government to disclose.

The prosecutor and the Government should be charged with knowing.

We admit that this evidence was admissible because there was a case on the books which quoted from an earlier case, the Griffin case, which as I have said, if they are read, they are flat holdings that this evidence is admissible.

That these cases touch upon this very nerve center, this question of whether or not a defendant must know about this evidence.

It is a flat holding that specific acts of violence are admissible, irrespective of the knowledge of the defendant and at that time this evidence was clearly admissible and the later case which the Government mentioned solved --

Justice John Paul Stevens: Bradley -- it is clearly admissible was this prior evidence, evidence of acts of violence?

Is evidence of possession of a knife and evidence of an act of violence, is that not the holding?

Mr. Edwin J. Bradley: Your Honor there was a conviction for assault with a deadly weapon.

Justice John Paul Stevens: There was actually possession of knives?

Mr. Edwin J. Bradley: And the 1971 conviction as the Court’s file in this case will show was for assault.

Justice John Paul Stevens: I see.

Mr. Edwin J. Bradley: So our position would be then that if we go to the record of this case, the record will demonstrate the prosecutor was knowingly possessed of evidence that as an experienced prosecutor, he must have realized and I think the Court will conclude, he knew full well was prohibitive for the defense and hurtful of his case.

At the very beginning, now the Government suggests that maybe the prosecutor does not know a thing about the crux of the defense or the theory of the defense, six months before the trial at a bail hearing, the defense attorney stood before the judge and said we have a very real issue here of self defense.

There were screams, when these people were found, he was trying to kill her.

The Government responded to that.

The Government knew six months before the trial that it was facing a fight on a question of self defense.

The Government tells us or the prosecutors tells us that there were several conferences, both before and after the bail hearing with -- between prosecutor and defense attorney where they discussed the issues in the case and very specifically, they discussed the character of Sewell.

The prosecutor offered the characterization he was not a pillar of the community.

Now, I think that very clearly shows again that he knew he was in a fight on a question of the character of the victim in this death case.

Justice Thurgood Marshall: When you said that the defense counsel --

Mr. Edwin J. Bradley: Yes.

Justice Thurgood Marshall: Could not the defense counsel say you got any reps sheet on him?

Mr. Edwin J. Bradley: Yes. he could have.

Justice Thurgood Marshall: And, he did not?

Mr. Edwin J. Bradley: No, he did not.

But, the prosecutor knew he had rep cheat and nor he did not tender it to the defense counsel and it was a perfectly simple thing to do and if he was not simply stone walling, if he was not simply saying I will wait this out, hope he does not ask for it, I hope he never finds it, it may never be discovered in my file.

Justice Thurgood Marshall: (Inaudible) you know, defense counsel would do a little something?

Mr. Edwin J. Bradley: Yes.

Justice Thurgood Marshall: And the Government should do a little something.

What I am trying to find out why you take position that the Government should do everything and defense counsel is excused from doing anything?

Mr. Edwin J. Bradley: Because the question --

Justice Thurgood Marshall: You are getting in middle there --

Mr. Edwin J. Bradley: I am sorry.

Justice Thurgood Marshall: I could better understand your point?

Mr. Edwin J. Bradley: Yes, because the question here is the fairness of the trial and whether or not the constitutional rights of this defendant are protected and if it turns out that she has been whipsawed by suppression by the Government and negligence by the defense, the result should not be if they cancel out.

This is not a matter last clear chance.

I reject the notion that this is something like a negligence case.

This is a question of the constitutional duty of the Government to tender exculpatory material and I simply fail to see any good reason why it should not tender that favorable material.

Justice Thurgood Marshall: (Inaudible)

Mr. Edwin J. Bradley: Your Honor, if the Government through its resources has developed this evidence, it turns out that some of it is favorable to the accused in the case, what is it about that situation?

I fail to see what is there about that situation that would require the Government --

Justice Thurgood Marshall: That in an adversary proceeding defense counsel should make a little bit of investigation of his own case, just a little bit?

Mr. Edwin J. Bradley: I agree with that completely.

Justice Thurgood Marshall: And in this case he did know that this man was a dangerous man, he was told of that.

Mr. Edwin J. Bradley: Yes.

Justice Thurgood Marshall: And he let it drop deliberately, am I right?

Mr. Edwin J. Bradley: Not in the sense that he felt that he did not want that evidence nor in the sense that he was sand bagging as the Government suggested that he will wait until after the trial to raise it.

He did it because he made a very serious error of judgment which constitutes in effect of assistance of counsel.

He made the decision because he was told something that he believed to be true with respect to its admissibility.

But he did not decide that he did not want that.

Now, had he had a quickly investigate it earlier and he had perhaps mentioned something to the Government, that might have produced -- might have provoked this prosecutor to disclose it, but the record does not even established that.

Justice Thurgood Marshall: (Inaudible)

Mr. Edwin J. Bradley: And discovered the same evidence under the same circumstances, a prosecutor knowing that he had it.

Yes, Your Honor, yes Your Honor.

Justice Thurgood Marshall: (Inaudible)

Mr. Edwin J. Bradley: Yes, Your Honor.

Justice John Paul Stevens: Mr. Bradley?

Mr. Edwin J. Bradley: Yes.

Justice John Paul Stevens: If you are through, I want to be sure I am clear on the admissibility point.

I was under the impression that the record showed that he was arrested for assault and pleaded guilty to possession of the knife.

Now, if that is a correct understanding of the record, is it your position that the arrest, that information would also been admissible?

Mr. Edwin J. Bradley: The -- may I speak first whether or not that is correct?

Justice John Paul Stevens: Yes.

Mr. Edwin J. Bradley: The Government has put into the file and that file is available to the Court, it is file in this case.

A certificate of conviction April, 1971, a guilty plead to assault.

Now, there was a charge, assault with a dangerous weapon, assault with the brick, carrying a prohibited weapon knife and a uniform narcotics act violation.

Now, our position is that this entire record constitutes on the one hand actual evidence itself, admissible evidence showing specific acts of violence under the Evans case, secondly, it provides an excellent lead to the defense attorney with respect to opinion in reputation evidence and thirdly, we would submit that it is admissible as the Burks case shows.

The Burks case, let me just quickly say, involved the conviction for cruelty to a child, that was the only conviction and the Court ruled that the defense could show that the victim caused the death of the child.

So here, the defendant could show not merely the convictions, but also the circumstances leading up to this bargained plea -- it would be open to the defense to show the actual circumstances of the assault with the brick, of the assault with razor, carrying, well there was a conviction for assault with the razor, but the carrying of the brick and the prohibited weapon knife presumably the same bowie knife.

Now, the record further more as I have said this prosecutor knew then he was in a fight, he knew that he had a knife issue, he knew that he had a character issue, he came to possess a record with this rich promise for the defendant as far exculpatory evidence was concerned, and he had to then decide whether or not under the Brady rule, he had to disclose that.

He made the conscious decision, and I would submit to the Court it was one of callous indifference, he made the conscious decision not to disclose that evidence.

Justice William H. Rehnquist: What do you know about the man state of mind?

Mr. Edwin J. Bradley: Well, we do know that he has admitted to having heard this fact -- the defense in the case, the whole crux of the defense was to be the self defense.

We know that he was thinking of a tough fight in a murder case and we know then that he must have deliberately sought and obtained this criminal record.

Now, was he simply somehow errorly innocent about whether or not that might hurt his case, if it came before a jury?

Did he not have conscious thought to whether or not this was admissible in evidence and if he did, did he do any research and should not the Government be charged with knowing that this case held this is was flatly admissible.

Justice William H. Rehnquist: Why should not the defense counsel be charged with precisely the same thing, he is the member of the bar?

Mr. Edwin J. Bradley: Very definitely he is and having failed to do within this case, there is an affect of assistance of counsel.

Justice William H. Rehnquist: Why is that so Mr. Bradley?

In all walks of life, except apparently in your view of ineffective assistance of counsel, principals are charged with the acts of their agents?

Now, why should the defendant here be charged with the action of her agent who is her counsel?

Mr. Edwin J. Bradley: Well, that of course would destroy the old notion of ineffective assistance of counsel.

Justice William H. Rehnquist: Well, it would certainly water it down some from your rather wide ranging views?

Mr. Edwin J. Bradley: Well, I do not -- Your Honor, I would submit that it is not my view of ineffective assistance of counsel.

It is the view of the American Bar Association in its promulgated standards and it is the view of the now leading case in the District of Columbia that says prompt investigation of factual material --

Justice William H. Rehnquist: Well, this Court has spoken on the subject and defined it has it not in Magnan and Terlep?

Mr. Edwin J. Bradley: Yes, Your Honor and Magnan as I understand it invited the various localities and jurisdictions to begin formulating specific principles which is what has happened in the Caster.

Justice William H. Rehnquist: I do not recall Magnan saying anything about that at all?

Justice Lewis F. Powell: Mr. Bradley?

Justice William H. Rehnquist: Yes.

Justice Lewis F. Powell: You place such emphasis on what you characterize as a callous and deliberate withholding this information.

You are aware I suppose that the Court of Appeals in the judgment you are sustaining here today, expressly said after commenting on what the prosecutor did, that this is not to say that the prosecution engaged in deliberate suppression.

Mr. Edwin J. Bradley: Yes.

Justice Lewis F. Powell: Note nine, so you -- what you are really doing is making an argumentation based on semis.

There is nothing in the record that puts it beyond your argument, is not it?

Mr. Edwin J. Bradley: Well, the record of the case, the transcript of the case and all of the references --

Unknown Speaker: (Inaudible)

Mr. Edwin J. Bradley: No, Your Honor.

I must disagree with that.

The record does not show that the prosecutor thought this evidence was inadmissible.

Justice Lewis F. Powell: But the rule certainly was not settled across the country as it (Voice Overlap)

Mr. Edwin J. Bradley: The law of the District of Columbia at this time under the Evans case and the Griffin case was that this evidence was admissible and that was immediately available to the prosecutor and I simply cannot believe that a prosecutor trying a murder case was unaware of those cases.

Justice Lewis F. Powell: So you are charging with callous and deliberate withholding of evidence relevant to the (Voice Overlap)

Mr. Edwin J. Bradley: And I think the record there is that out.

Justice Lewis F. Powell: I understand.

Mr. Edwin J. Bradley: And furthermore, you see what has happened in this case, with the permission of the Court, there was a reference to the fact that well we all know that it was Sewell’s knife.

The Jury knew nothing of the sort.

Now, as I have said, he knew, we had the prosecutor who knew we had a knife issue and in the pre-trial, he conceded to the defense attorney, well, it looks like you are right, it is Sewell’s knife you will see that on page 848 of the Appendix.

The first witness that he called in the case was Sewell’s wife, the victim.

He asked her did your husband carry a bowie?

“No never!” and he took pains to have it demonstrate to the jury the length of the knife that he did carry, indicating that it was merely a penknife and it was a penknife that was found in his pocket.

This prosecutor having conceded prior to trial, not only they had a knife issue, but apparently he was going the other way, then went into the trial, having concealed some very eloquent evidence as to knife carrying from the defense, went to the trial and then developed for the jury evidence from which they certainly must have concluded, taking the invitation of the prosecutor that this knife was not taken into that room by Sewell.

He then asked the desk clerk, “did observe any weapon?”

And that the desk clerk said “No”.

Now, these were the first two witnesses.

Then later in the trial, he brings in another person who was in the motel, Griffin, brings him from the lock up, asks him some very brief questions, one of which was whether or not you observed the weapon and he said “Yes he had.”

And, then he also asked him another question with respect to the position on the knife and proceeded to discredit his testimony on that.

The only evidence before the jury in other words that Sewell the victim carried a knife was from a witness discredited by the prosecutor.

Unknown Speaker: (Inaudible)

Mr. Edwin J. Bradley: Yes.

Unknown Speaker: (Inaudible)

Mr. Edwin J. Bradley: Yes.

Justice Potter Stewart: It is all here, (Inaudible) the appendix, almost all --

Mr. Edwin J. Bradley: So this was a prosecutor who over played his adversarial role.

He knew he had evidence as I have said an excellent characterization was that he simply stone walled.

Now, that is what is the result is going to be if you follow the suggestion of the Government here today.

If this Court does not take the opportunity to announce a rule, as a matter of firm policy that anything consciously in the possession of the prosecution which is readily recognizable as relevant to the defense and hurtful to the prosecution that that must be turned over to the defense.

What you are going to get is a prosecution and doing precisely what the United States Attorney did, waving and hoping that the defense will miss the boat and then arguing contributory negligence or arguing should the defense have to help itself, and I submit that that is an excess of any adversary concept.

And I would suggest to you that the rule or would submit to you that the rule that we ask you to follow today is as I have said administratively feasible.

There is no hurt to the Government in having to comply with this rule.

Justice Thurgood Marshall: Mr. Bradley?

Mr. Edwin J. Bradley: Yes.

Justice Thurgood Marshall: The counsel just sits around and waits four months later and then goes and gets material (Inaudible) free?

Mr. Edwin J. Bradley: Your Honor, there are two answers to that.

First of all, I think it is with difference, an invalid behavioral assumption.

I think prosecutors and defense attorneys will both try to win cases.

I think that defense attorney with the limitation of resources and time and astuteness will do its best to uncover evidence.

And I think you can -- I think we count on that.

In any event if you suspect that the defense attorney will seat back, waiting then until after trial to raise the Brady point, the answer is very simple.

Had the prosecutor combed his file before trial and if there is anything remotely helpful, disclose it.

It sounds the problem perfectly for the Government, and there is no way it seems to me that will impose if we require that impose any undue burden on the Government.

And in fairness, it should be required.

Why again should the Government be allowed do withhold the exculpatory material?

So this was I think is clear from the case law admissible.

I think when you fully consider the issues in the case and what was going through, it had to be going through the mind of this prosecutor, he was talking about this issues with the defense that he knowingly withheld admissible, helpful evidence that he was callously indifferent and that if the defense had had this issue or had had this evidence, it would have change fundamentally the whole character of this trial.

Justice Potter Stewart: Mr. Bradley?

Mr. Edwin J. Bradley: Yes.

Justice Potter Stewart: Well, I could not find in the Appendix, what sentence was imposed to this case?

Mr. Edwin J. Bradley: Five to 20 years, Your Honor.

Justice Potter Stewart: Five to 20 years.

Mr. Edwin J. Bradley: Yes, and at this point the defendant has served, has credit for three years.

Chief Justice Warren E. Burger: Was the defendant represented by the Public Defenders Office legally --

Mr. Edwin J. Bradley: He was an appointed counsel, Your Honor.

Chief Justice Warren E. Burger: (Voice Overlap) Private Practitioner?

Mr. Edwin J. Bradley: Yes.

Chief Justice Warren E. Burger: (Voice Overlap)

Mr. Edwin J. Bradley: Yes, -- no a private practitioner.

Chief Justice Warren E. Burger: You have anything further Mr. Frey?

Rebuttal of Frey

Mr. Frey: Just one or two things Mr. Chief Justice.

First of all on the claim that this evidence was admissible, the Evans case was completely distinguishable.

What was held in Evans was the testimony that the deceased became violent when drunk as he was at the time of his death was admissible to show his character for violence.

That is not an issue here.

The question here is how do you show character for violence?

Can you show character for violence by isolated specific acts?

I wonder if the defendant or indeed the Court of Appeals would be taking the same view if we were trying to show that the defendant was the aggressor by means of one or perhaps it is two -- that is not what the opinions indicate, simple assault convictions.

In any event, we have discussed that at pages 6 to 9 of our brief and I think it is plain that the evidence was inadmissible in the District of Columbia at the time or certainly was not plainly admissible.

Now, what the prosecutor said in argument to the District Court and there is not basis for assuming that he was lying, he explained to the District Court, this is at page 148 of the appendix, there was nothing in this case which indicated to the prosecution that the record of the decedent was in anyway favorable or usable by the defense in this case.

In fact, I would say quite frankly to the Court that the Government’s position prior to Burks was that the prior record of the decedent was not admissible in evidence unless the defendant herself knew about that.

Justice Potter Stewart: That was Burks -- that was a case and when was that decided chronologically?

Mr. Frey: Four months after - it was decided three months after in October 1971.

Justice Potter Stewart: After conviction?

Mr. Frey: After the trial and conviction in this case and even in Burks, it was Burks who was victim and I believed it was clearly wrong as a matter of --

Justice Potter Stewart: This case someone added -- anti dated to this trial?

Mr. Frey: The Evan case was 10 years earlier, but in Hayes which is the Tenth Circuit case which we cite, they approved Evans.

They say if the defendant did not know about it, it is not admissible.

If the defendant did know about it is admissible not because it tends to prove a propensity for violence on the part of the deceased, but because of the subjective state of mind --

Justice Potter Stewart: (Voice Overlap) is that used to be the rule of evidence, is that right?

Mr. Frey: That is right.

I know the red light is on.

There is one case that I feel obliged to call to the Court’s attention.

It was not discussed in our briefs and that is the decision of this Court in Griffin which was in 336 U.S.

I do not think it is been cited by either party.

It was cited by the Court of Appeals in its opinion. Griffin was a capital case and in the last footnote in Justice Murphy's dissenting opinion will show why it is not opposite to this.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.